REPORT: Why the Federal Labor Board Should Be Dismantled.
Posted to Politics August 16, 2017 by Connor D. Wolf.
The federal agency that oversees collective bargaining agreements and unfair labor practice complaints should be dismantled, argues a new report out Wednesday from a free-market think tank.
The National Labor Relations Board (NLRB) is an independent federal agency with responsibilities for enforcing national labor law. The agency has both been hailed as a guardian or worker freedom and condemned as dangerously biased. The Competitive Enterprise Institute (CEI) says it’s time to end the agency.
The CEI report highlights several reasons why the board should be dismantled. The Department of Labor and federal court system would then split the duties for which the board is currently responsible. The report argues the board is biased, flip-flops on its own case law, and is ineffective at ruling in labor dispute cases.
“The Board is composed of two Republican and two Democratic members, with a chairman from the president’s party,” the report argues. “This has caused case precedent to flip-flop depending on which party holds the White House.”
The report adds ending the agency could help stop the trend of activists using the board to change the law. A federal court system would presumably be more consistent with rulings since it’s less partisan. Businesses would then also have a clearer and more consistent legal framework to ensure they are following the law.
The report also argues that the agency is ineffective at ruling on labor dispute cases. It highlights an overall decline in decisions and an ever increasing budget. The report notes that the agency’s annual budget appropriations increased from $112 million to $274 million between 1980 to 2016.
“The NLRB has proven ineffective in its labor dispute resolution role, doing less work at greater cost to the taxpayer,” the report states. “From 1980 to 2016, the Board’s annual caseload fell by 58 percent, from more than 57,000 cases to 24,200, and its output of published decisions fell by 78 percent from 1,343 to 298.”
The NLRB was established in 1935 as part of a series of economic related reforms known as the New Deal. Former President Franklin D. Roosevelt pursued the economic changes in response to the Great Depression. The reforms included worker rights laws and support for the economically disadvantaged.
“The agency’s rulemaking authority and election duties should be transferred to the Department of Labor, which already has expertise in these areas,” the report states. “The Board’s adjudicatory authority should be transferred to federal district courts.”
The CEI report is part of an ongoing series of policy memos focused on ways to reduce the size of the federal bureaucracy. In congressional testimony and policy papers, the think tank has previously been highly critical of the NLRB for allegedly biased behavior.
Critics argue the board became overly activist during the Obama administration. The NLRB was able to implement changes to labor law by altering how it ruled on cases. The administration argued the changes were designed to better protect workers. The NLRB focused on how union elections are held, how companies can contract together, and how contract workers are classified. Critics of the changes argue they benefited unions at the expense of both employers and their workers.
House Republicans have introduced a bill to clarify a law that has been interrupted by the board multiple times. The joint-employer standard determines whether an employer is responsible for the employees of a company it contracts with. The law has allowed for multiple interpretations from courts and federal agencies.
The joint-employment standard is determined based on how much control one employer exerts over the employees of another company. Critics contest the patchwork of various interpretations makes it difficult to reasonably determine whether an employer is exerting too much control. The NLRB update was denounced for being overly vague, which created more uncertainty.
Marvin Kaplan was confirmed to fill one of two vacant seats August 2. William Emanuel was also nominated to fill the other vacant seat on the board. Philip Miscimarra has been serving as the new chairman. He was previously a member and served as the acting chairman when President Donald Trump started his term.
A Nice Change of Pace: NLRB Upholds Employer’s Confidential Information Policy
Article By:David J. Pryzbylski
From social media policies to positive workplace environment statements to non-employee access to company property procedures, the National Labor Relations Board (NLRB) has struck down numerous company personnel policies in recent years on grounds they “chill” employees’ ability to engage in protected activity under the National Labor Relations Act (NLRA). The board generally cites Section 7 of the NLRA as support for its positions, which protects employees engaging in “concerted activity” for “mutual aid and protection.” The agency has construed this language broadly to mean, in its view, that employment policies cannot impede on employees’ rights to discuss the terms and conditions of their employment.
On Aug. 14, the NLRB issued a rare decision in which it upheld Macy’s, Inc.’s “confidential information policy.” The policy at issue provided, among other things, that employees could not use/divulge various types of confidential information, including marketing plans, pricing strategies, social security numbers, credit card numbers, etc. The United Food & Commercial Workers union challenged the policy on grounds that it allegedly “chilled” workers’ rights, including by limiting employees’ ability to appeal to the company’s customers. In recent years, the NLRB has struck down similar confidentiality policies in various contexts. That was not the case here. The NLRB ruled that Macy’s confidential information policy was narrowly drafted and did “not interfere with the [employees’ rights] insofar as they restrict the use or disclosure of social security numbers and credit card numbers, or to the extent they restrict the use of customer contact information obtained from [the company’s] own confidential records.” Thus, this serves as a great example of how to tailor similar policies to maximize chances of prevailing against challenges by the NLRB.
This also comes on the heels of a federal court reining in the NLRB related to a “positive workplace” policy. There, the court overruled the board and held that, generally, an employer can require employees to promote a positive workplace. While employers still need to be cognizant of the NLRB’s general approach to these cases, it appears that the board’s positions are being pared back. In addition, it is possible, if not likely, that we will see more positive changes on this front coming when a pro-management NLRB is in place, as the current chairman has indicated he desires to modify the agency’s approach on these issues and take a more practical (and likely business-friendly) approach.
Summary of NLRB Decisions for Week of July 31 – August 4, 2017
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
No Published Board Decisions Issued
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued
C Cases
No Unpublished C Cases Issued
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Appellate Court Decisions
Fred Meyer Stores, Inc., Board No. 36-CA-010555 (reported at 362 NLRB No. 82) (D.C. Cir. decided August 1, 2017)
In a published opinion, the Court granted the petition for review, denied enforcement, and remanded the case to the Board to reconsider portions of its decision. Under review was the Board’s order issued against this retail grocery business for unfair labor practices committed at its store in Hillsboro, Oregon, after its collective-bargaining agreements with the United Food and Commercial Workers, Local 555, expired and negotiations for successor contracts were underway. Specifically, the Board (then-Chairman Pearce and Member Hirozawa; Member Johnson, dissenting in part) found that the Employer violated Section 8(a)(1) and (5) by prohibiting two union representatives from speaking with unit employees on the store floor, in contravention of past practice and the contractual store-visitation clause. The Board also found that the Employer violated Section 8(a)(1) by causing three union representatives to be arrested and charged with criminal trespass, and by a store manager’s coercive statements about the Union.
The Court held, contrary to the Board, that the two union representatives who entered the store to speak with unit employees on the store floor had not adhered to the terms of the store-visitation clause because they failed to first notify management of their presence and thus had become trespassers. Noting, however, that the Employer had not made that argument to the Board, the Court nonetheless held that remand of the issue was necessary because the Board’s decision had ignored record evidence, misconstrued findings made by the Administrative Law Judge, and had failed to respond to key points raised by the dissenting member. Further, the Court held that the arrests and resulting trespass charges were not caused by the Employer’s actions, but rather by the union representatives’ refusal to obey the order of police officers to leave the premises. Finally, the Court held that the store manager’s statements about the Union were simply expressions of frustration directly responding to the events that had transpired, and were not threats to employees or even a statement of a forward-looking policy.
The Court’s opinion is here (link is external).
Oberthur Technologies of America Corp., Board Nos. 04-CA-086325, 04-CA-160992 (reported at 362 NLRB No. 198, 364 NLRB No. 59) (D.C. Cir. decided Aug. 4, 2017)
In a published opinion, the Court enforced the Board’s orders in these test-of-certification and related unfair-labor-practice cases that were consolidated for review. The Board’s orders issued against this manufacturer of credit, debit, and governmental identification cards at a plant in Exton, Pennsylvania, where a unit of its nonprofessional employees voted in a September 2012 election to be represented by Graphic Communications Conference, International Brotherhood of Teamsters, Local 14M.
In the underlying representation case, the parties entered into a stipulated election agreement in which they agreed that the Regional Director would conduct a conventional representation election. In the weeks before the election, a plant supervisor instructed employees not to talk about the Union while on the plant floor or during work time, and, shortly thereafter, the Employer announced that it would delay and withhold planned wage increases and bonuses during the pendency of the Union’s election petition. The Union filed charges alleging that those actions were unlawful.
As the election concluded, the Union challenged the ballots of two engineers on the basis that they were cast by “professional employees” within the meaning of Section 2(12), without the voting safeguards required by Sonotone Corp., 90 NLRB 1236 (1950) (holding that professional employees must vote in a separate voting group, using special ballots to determine, first, whether they wish to be included in a unit with nonprofessionals and, second, whether they want union representation). Given the final tally of 108 to 106 in the Union’s favor, the two challenged ballots were determinative of the election, and the Union filed election objections. Finding common issues between the unfair-labor-practice and representation cases, the Regional Director consolidated the cases for hearing before an Administrative Law Judge. After a hearing, the judge found the unfair labor practices as alleged, and concluded that the two engineers were professional employees because their work drew upon specialized technical or professional knowledge and required them to lead cooperative efforts, and that they both were salaried employees with academic degrees.
The Board (Members Hirozawa and Johnson; then-Member Miscimarra dissenting in part) issued a decision, order, and certification of representative (362 NLRB No. 198), adopting the judge’s unfair-labor-practice findings, and, in the representation case, affirming the judge’s recommendation to sustain the ballot challenges. Subsequently, the Employer refused to bargain in order to seek court review of the certification, and the Board (then-Chairman Pearce, then-Member Miscimarra, and Member Hirozawa) granted the General Counsel’s Motion for Summary Judgment (364 NLRB No. 59).
On review, the Court held that substantial evidence supported the Board’s unfair-labor-practice findings. Specifically, the Court noted that the Employer had restricted employee speech about unions, while concededly permitting employee discussion about non-union subjects, and had frozen two longstanding employee wage benefits, which would have been granted but for the Union’s election petition. On the representation-case issues, the Court upheld the Board’s determination to sustain the ballot challenges. The Court held that substantial evidence supported the finding that the two engineers were professional employees within the meaning of the Act, but that the parties’ stipulated election agreement had not provided for the necessary Sonotone election protections for those professional employees, whose ballots therefore were properly not opened or counted in the election.
The Court’s opinion is here (link is external).
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Administrative Law Judge Decisions
United States Postal Service (05-CA-180590; JD-61-17) Alexandria, VA. Administrative Law Judge Arthur J. Amchan issued his decision August 1, 2017. Charge filed by an individual.
Apex Linen Service, Inc. (28-CA-177062; JD(SF)-35-17) Las Vegas, NV. Administrative Law Judge Gerald M. Etchingham issued his decision on August 1, 2017. Charge filed by Culinary Workers Union Local 226 affiliated with Unite Here International Union.
ADT, LLC d/b/a ADT Security Services (03-CA-184936 and 03-CA-192545; JD-62-17) Albany, NY. Administrative Law Judge Michael A. Rosas issued his decision on August 4, 2017. Charges filed by International Brotherhood of Electrical Workers, Local Union 43.